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Is a Premises Liability Case Affected By the Open and Obvious Rule?

A premises liability case is one in which a person sustains an injury while on somebody else’s property, whether it be a landlord, business or other entity. These cases almost always involve an issue of management or control over the premises. The question is whether the landlord or other person in control exercised reasonable care in maintaining the area.

In Massachusetts, I will often hear an insurance company argue that my client failed to take into account the open and obvious nature of the condition that caused the accident. In the Supreme Judicial Court’s decision of O’Sullivan v. Shaw, 431 Mass. 201 (2000), a plaintiff who jumped into a shallow area of a pool suffered substantial injuries. In that case, the court found that the open and obvious rule stopped the plaintiff from bringing a successful suit. The injured man could not expect a warning. This is a logical decision. Several commentators, including the Boston Globe, editorialized in favor of the Court’s decision.

The O’Sullivan case is a rather extreme example of the rule since a person should know the dangers of jumping headfirst into a pool when that person is not sure of its depth or knows it is shallow. Most cases are not so clear-cut. In fact, O’Sullivan was ruled inapplicable in another pool accident. In that case, the deck had insufficient lighting and no guardrails and led to the person’s fall. A warning was therefore irrelevant. Our courts are willing to find that there can be responsibility if property is maintained in a dangerous condition. The landlord, or other person in control, cannot claim that the dangerous condition was open and obvious.

In conclusion, the open and obvious rule will not be a proper defense to liability in most situations. It is overused by the other side. We are controlled by common sense but not controlled by an individual’s unwillingness to remedy an unsafe situation, no matter how open and obvious.

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